Gujarat High Court
Shantaben B Dakshini (Deceased) & 2 vs Deputy Collector &Amp; Competent ... on 8 March, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/CA/7976/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR AMENDMENT) NO. 7976 of 2015
In SPECIAL CIVIL APPLICATION NO. 6404 of 1989
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SHANTABEN B DAKSHINI (DECEASED) & 2....Applicant(s)
Versus
DEPUTY COLLECTOR & COMPETENT AUTHORITY ULC &
1....Respondent(s)
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Appearance:
MR. SATISH PANDYA FOR MR NK MAJMUDAR, ADVOCATE for the
Applicant(s) No. 1 - 2.3 , 3
MR. TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 08/03/2016
ORAL ORDER
The applicants are the original petitioners of main Special Civil Application No. 6404 of 1989, who have prayed for permission to amend the main petition. The amendment sought for is stated to be in wake of coming into force Urban Land (Ceiling and Regulation) Repeal Act, 1999.
2. In the main petition, the petitioners have challenged order dated 12.09.1988 passed by Urban Land Ceiling Tribunal in Appeal No. 22/1985 confirming the orders dated 18.01.1985 as well as dated 26.07.1989 of the Collector & competent authority under the Act.
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3. Learned advocate Mr. Satish Pandya appearing for learned advocate Mr. N. K. Majmudar submitted that the amendment was formal in nature as the applicants-petitioners only wanted to aver and assert that the possession of surplus land had have remained with the petitioners and they are therefore entitled to get benefit of provisions of the Repeal Act of 1999. He submitted that the amendment became necessary mainly because of the Repeal Act having been brought into force. He further submitted that at one stage, the Special Civil Application came to be dismissed by the court for non-prosecution by order dated 25.10.1999; however subsequently, the same was restored. He submitted that prior to the date of dismissal of the petition for default, the status quo had been operating. This circumstance was submitted as an additional ground for permitting the amendment.
4. On the other hand, learned Assistant Government Pleader Mr. Tirthraj Pandya submitted that the prayer to amend is after passage of several years, hence the same requires a close scrutiny as to its justification and acceptability for granting it.
5. By way of proposed amendment, the petitioners want to add paragraph Nos. 7(A) and 7(B) in the memorandum of petition. In that the petitioners have averred that possession of the land in question remained with them till the Urban Land (Ceiling and Regulation) Act, 1976 came to be repealed. Reference of section 4 of the Repeal Act is made seeking to aver that the possession had remained with the applicants-petitioners, the proceedings stood abated in view of section 4. It is further sought to contend that now it is not open for the respondent authorities to take back the possession of the land in question. Amendment is prayed for also in prayer clause in the main petition by incorporating the prayers in Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Mar 11 01:09:34 IST 2016 C/CA/7976/2015 ORDER terms of para 11(aa), 11(bb) and 11(bbb), by which the petitioners have asked for declaration that in view of the provision of section 4 of Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proceedings under the Act stands abated and declaration that the possession of the land in question remained with the petitioners, and to direct the authorities not to disturb possession of the petitioners.
6. As was rightly submitted by learned AGP, the amendment prayed for as above was required to be examined attentively. It appears that in respect of the properties described in paragraph No.3 of the petition, final statement was filed on 18.08.1976 before the respondent No.1 as per section 6 of the Urban Land (Ceiling and Regulation) Act, 1976. The impugned orders have been challegned by the petitioners on various grounds. The amendment now prayed for is on the footing and assertion that the petitioners were and remained in possession of the surplus land and in that view of the matter, the petitioners are entitled to benefit of section-4 of the Repeal Act.
6.1 But apropos the above stand now put up, the following averments in paragraph No.2 of the petition deserves to be noticed for the purpose of grantability of amendment, now prayed for, by the petitioners, "....The petitioners also challenge the notice Dt. 4-11-1988 under section 10 of the U.L.C. Act issued by the Dy. Collector (U.L.C.) Rajkot directing the petitioner No.2 to handover the possession of 915-62 Sq. Mts. of land which is declared surplus. A copy of the notice Dt. 4-11-88 is annexed as annexure "C". The petitioners submit that thereafter the Collector, Rajkot has taken possession of the said surplus land vide notice Dt. 26-7-89."
6.2 Therefore, the case in the present application for amendment that Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Mar 11 01:09:34 IST 2016 C/CA/7976/2015 ORDER the petitioners were in possession on the date of coming into force of the Repeal Act stands diametrically opposite and contrary to the averments made in main petition. Therein the petitioners have clearly stated on oath that the collector had taken the possession of said surplus land in the year 1989 itself.
7. The amendment brings out a total new position in conflict with petitioners' own case pleaded in the main petition. The amendment is therefore manifestly not well founded, if not far from bona fide. It cannot be granted. Hence, the application is dismissed.
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